Inactivity, Inconsistency, and Individual Regulation

Within a very good post on the consequences of today’s SCOTUS ruling, Adam Serwer writes:

In the court battle over Obamacare, the government had argued that the individual mandate—the part of the health care law that requires Americans to purchase health insurance or pay a fine—was constitutional because the Commerce Clause gives Congress the authority to regulate interstate commerce. The government’s lawyers said that without the mandate, the health care law wouldn’t work, and because not having health insurance substantially affects the health insurance market (i.e., it affects interstate commerce), it was okay to fine people for not buying insurance. Conservatives argued that the mandate was not really regulating commerce, but forcing people to engage in it. They claimed the Commerce Clause allowed Congress to regulate “activity” but not “inactivity”—a distinction found nowhere in the Constitution itself.

The “activity/inactivity” distinction went from being a laughable attempt to try to distinguish this case from the previous Raich ruling to a serious argument adopted by 5 of the 9 Supreme Court justices. But despite the fact that this ruling has weakened the Federal government’s powers under the Commerce Clause, this distinction between Raich case and the ACA is still imaginary.

In the Raich decision, a person growing a marijuana plant was automatically participating in interstate commerce, regardless of his/her “activity”. If a person grew a plant, harvested it, and consumed it entirely himself/herself, it was still considered part of interstate commerce. Their activity or inactivity with respect to any actual marketplace was never the issue, but the commodity itself. With health care, the same situation existed, except that it didn’t just cover a subset of the population. Every single person in America is potentially part of that market on any day – even if they desired not to be – and therefore most people looked at the decision in Raich and concluded that it was well with the Commerce Clause to require folks to either insure themselves or pay a penalty.

There are certainly a number of conservatives who’ve been consistent in their views on the Commerce Clause, and to some extent I’ve been swayed by their arguments. But the intellectual inconsistency of Scalia and Kennedy (and of course Rob McKenna) for supporting Raich, but fighting to have the ACA overturned is appalling.

Later in the post, Serwer also notes that the majority ruling that the mandate is a constitutional tax on individuals potentially leads to the infamous “broccoli scenario” being carried out through a tax. What’s stopping the Federal Government from imposing a tax penalty over any number of consumer choices? Serwer argues that this is a reason for liberals to breathe easier about progressives’ ability to craft good regulations in the marketplace, but I’m somewhat skeptical.

The aspect of this that concerns me the most is the shift from allowing for the regulation of systems and institutions to the regulation of individual behavior. Regulating individual actions is generally an ineffective way to regulate any system. Climate change is a great example. Trying to solve our climate crisis merely by using taxes to influence individual consumer choices isn’t going to have anywhere near the impact of being able to impose strong regulations on the industries that contribute to high CO2 levels in the atmosphere. We’re not anywhere near the point where this is a real legislation-inhibiting concern, but the current court seems inclined to push us in that direction.

I don’t want to be too negative about all this. I was relieved that the ACA was allowed to stand this morning. It certainly wasn’t perfect legislation, but it was a small first step towards moving us towards more cost effective health care in this country. And hell, this decision today – especially with its modified view of the Commerce Clause – might be reversed again the next time to court sees it. Especially if it involves allowing the feds to go after some potheads.

Mike–All Roberts said was ACA is Constitutional and is a TAX. The largest TAX increase on the Middle Class in the History of the world.
Roberts went out of his way to say the ruling does not mean it is in any way good Legislation. And Roberts also made it perfectly clear the ball is now in the Court of the electorate.
This, the economy and the corruption of the Obama Regime will be the focus of the election.
Obama may still pull it off.
But watch the polls tighten as Romney has lots of money and it is rolling in by the millions daily to message ObamaCare, the Economy, Fast & Furious, Solyndra etc etc.
Obama now has a clear record to run against and blaming it on Bush has run it’s half-life.
America needs a LEADER. Obama is a perpetual campaigner and one hell of a LIAR!

“The Affordable Care Act is constitutional in part and unconstitutional in part The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” Roberts wrote. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.”
Roberts stressed that the decision does not speak to the merits of the law. “We do not consider whether the act embodies sound policies. That judgment is entrusted to the nation’s elected leaders,” he said.

It’s a tax boneheads. The largest tax increase on the Middle Class in US History. Obama is going to have to re-sell this and the devil is in the details. Massive IRS increase in staff to enforce? What happens if you fail to purchase insurance and refuse to pay the penalty? Think this thru to the end. Will people go to jail?

“And hell, this decision today – especially with its modified view of the Commerce Clause – might be reversed again the next time to court sees it. Especially if it involves allowing the feds to go after some potheads.”

This statement underscores the very human pettiness that often undermines the actions of powerful people and the institutions that they serve.

You might as well have Bubba from rural Florida on the Supreme Court as the supposedly learned noggins of the conservative factions.

The contempt vote Thursday against Attorney General Eric Holder could spell trouble for President Obama — not just for his administration’s efforts to lock down Fast and Furious documents, but also for his re-election campaign.
Holder over the past three-and-a-half years has become, according to one polling outfit, the most unpopular member of Obama’s Cabinet. The attorney general is associated with a string of controversial decisions — from his response to the Fast and Furious probe to his department’s suits against state immigration laws to the campaign to halt GOP-led voter ID laws in Florida and elsewhere — that have riled conservatives, even some Democrats.

Ignorant Lee-
You need the crash helmet dummy. Here are the tax increases–

1) The Individual Mandate Excise Tax. Starting in 2014, anyone not buying “qualifying” health insurance must pay an income tax surtax. It goes up each year until 2016 and beyond when a couple would pay a tax of the higher or $1,360 or 2.5% of adjusted gross income.

2) The Over-The-Counter Drugs Trap. Since Jan. 1, 2011, employees with health savings accounts, flexible spending accounts or health reimbursement accounts have no longer been able to use pre-tax funds stashed in these accounts to buy over-the-counter medicines for allergy relief and the like without a doctor’s prescription (there’s an exception for insulin).

3) The Healthcare Flexible Spending Account Cap. Starting Jan. 1, 2013, employees will face a $2,500 cap on the amount of pre-tax salary deferrals they can make into a healthcare flexible spending account. There is no cap under current law. In light of the new cap, employee benefits groups are lobbying for Congress to modify the use-it-or-lose-it rule that means employees forfeit unused funds in their accounts at the end of the plan year.

4) The Medical Itemized Deduction Hurdle. Starting Jan. 1, 2013, taxpayers who face high medical expenses will only be allowed a deduction for expenses to the extent they exceed 10% of adjusted gross income, up from 7.5% now. Taxpayers 65 and older can still use the old 7.5% threshold through 2016. For how to score the medical expense deduction before 2013, click here.

5) The Health Savings Account Withdrawal Penalty. Since Jan. 1, 2011, taxpayers who withdraw money from health savings accounts for non-medical expenses before age 65 face a 20% penalty, up from 10% before.

6) The Indoor Tanning Services Tax. Since July 1, 2010, folks using indoor tanning salons face a new 10% excise tax. This one hasn’t been bringing in as much revenue as anticipated.

7) The Cadillac Health Insurance Plan Tax. Starting in 2018, there will be a new 40% excise tax on taxpayers who are covered by comprehensive health insurance plans.

Lee, when will you learn that just because Obama says something doesn’t mean it’s true.
The impact on the Economy of this and the expiring Obama Tax Cuts (Obama extended the Bush cuts so now they are the Obama Tax Cuts,,,wouldn’t be in place except for OBAMA!)

I’ve been silent for the past 24 hours because I still have no idea what to think. I also suddenly got really busy at work and at home.

I thought Randy Barnett was brilliant in his arguments on volokh.com before the hearing. Nice to see his opinions had merit.

From the article:

Roberts says the government can’t compel you to do something under the Commerce Clause, but it can still tax you for not doing it. It’s difficult to see how that meaningfully constrains future liberal projects.

I don’t see the difficulty. A tax must be levied by Congress. A tax must be run through both houses of Congress before it’s signed into law.

Anybody see any new taxes remotely on the horizon, unless it’s a tax disguised as a mandate that turns out to be unconstitutional?

After what happened with ACA, will anybody believe a president – whichever party – who tells Little George that it’s not a tax, it’s a mandate?

Lee–
The point is there are all kinds of costs to taxpayers in the bowels of ObamaCare.
Some folks think it’s “free”?
How moronic is that.
Legislation, especially of this magnitude, has undesirable consequences. Obama tried to make it wound like a no-brainer that would save folks from certain doom.
Fact is we don’t have enough doctors & Medical Bankuptcy impacts less than `1 in 10,000 Americans & that this is a massive tax increases in a time of a frail economy.
Will this encourage the private sector to hire more people or contract??
Easy answer..contract.

@19
Serialbub – so, seems you pulled yourself out of the fetal position that was keeping you so ‘busy’ yesterday, of all days. Remarkable coincidence how your life got ‘busy’ just then.

Seem that you had nothing to say, or your source of pithy commentary was on the fritz, which is another remarkable coincidence, when juxtaposed with the general disarray of the entire Republican Party (see Boehner, cancelled speech). One would almost be led to think that you were a part of this apparatus.

As a welcome back present I’ll throw you a softball, a question I asked you the other day that I assume you just missed with all your ‘busy’ time:

94. Liberal Scientist is a a dirty fucking hippie spews:

So, serial, tell us all what Mittens is going to do for the country. Give us 10 – no, make it 5 – 5 positive things Mitt is going to do for us to make the US a better place for all its citizens.

I’d love to hear something positive about your side from you. You’re very adept at bomb throwing and slippery word smithing and changing subjects when a particular point is lost.

I want you to articulate a positive argument for Mitt Romney and a Republican government.

Here is a very good assessment of what must be done to stop ObamaCare-

Despite the court ruling, there is still a chance that Republicans in Congress can repeal much of the law next year even if they don’t have a filibuster-proof majority in the Senate. Because Chief Justice John Roberts ruled that the mandate to purchase health insurance—one of the key provisions of the law—was a tax, Republicans can use a procedure called “budget reconciliation” to pass a repeal bill that requires only a simple majority to pass. But this scenario relies on the Republicans’ ability to win the White House, keep the majority in the House and gain enough seats in the Senate.

Obviously this scenario will be presented to voters over & over again before November.
Democrats will try to make Senate Races & House Races local and Republicans will make this a National Referendum.
Only chance to repeal much of the law is putting R’s in charge. You Marxist boneheads obviously disagree. You love big government underfunded programs. Me? I don’t.
So what will Independents say?

Straw man, much? No one thinks health care is ‘free’, moron. However, the USofA spends more than double, per capita, than comparable countries, and that windfall is delivered to substantially less than all of us. Reshaping the health care economy is of central importance, and that includes getting more for what we’re spending.

Fact is we don’t have enough doctors

Not necessarily true. We don’t have the right doctors. Given disparity with regard to reimbursement, those docs that actually maintain health are short-changed, and those that wield a scalpel or an endoscopy camera are overly-compensated – driving the whole enterprise to a more intervention (reactionary) rather than wellness-oriented (proactive) approach. It’s a microcosm of society actually – the AMA committee that ‘recommends’ (CMS essentially rubber stamps their recommendations) reimbursement rates is WAY dominated by proceduralists – mostly surgeons, and is under-represented with internal medicine and other primary-care docs. This perpetuates a system whereby some specialties make you rich, and they tend to make the rules, and others, without real regard to true societal value or assumed risk, have much less voice and have a very difficult time even staying in business.

State and local governments will be required to report unfunded pension liabilities on their balance sheets for the first time under two standards the Governmental Accounting Standards Board approved on June 25. The rule calls for governments to report in their financial statements a net pension liability that is equal to the difference between the total pension liability and the value of assets set aside in a pension plan to pay benefits to current employees, retirees and their beneficiaries. The AICPA supports the increased transparency in public pension benefits resulting from these new statements. Read the AICPA’s press release and this JournalofAccountancy.com article for more information.

The Public has been grossly mislead about the unfunded pension liabilities especially.
It’s about damn time (quote from LeBron_

The day after SCOTUS’s Romneycare ruling, stocks are having their best day of 2012. The direct catalyst is an agreement to shore up Europe’s banks; but if health care reform is as bad for the eocnomy as Republicans claim, why did the Dow lose only 25 points yesterday, and why is the Dow soaring 225 points today? What we’re seeing is that when people have to bet real money on what they think the future holds, it’s obvious that health care reform isn’t a drag on investor expectations and may even be positive for future economic growth.

Btw, in case anyone is interested, I made $4,300 in the stock market this morning before getting out of bed. Sure beats fighting commuter traffic and getting yelled at by an overwrought boss to make $20 an hour!

Flashback: Romney admitted his mandate was a tax
By Greg Sargent
ABC News’s Michael Falcone unearths video of Mitt Romney admitting, in a 2008 presidential debate, that the individual mandate he passed as Governor of Massachusetts was a tax:

CHARLIE GIBSON: Governor, [inaudible] you imposed tax penalties in Massachusetts [inaudible].
ROMNEY: Yes, we said, look, if people can afford to buy it, either buy the insurance or pay your own way; don’t be free-riders and pass on the cost to your health care to everybody else…

Are you sure? Surely our Job Creators are aware that the SCOTUS decision affirming the constitutionality of the Affordable Care Act means the complete destruction and collapse of the free market and the BIGGEST TAX INCREASE EVAH!

I mean, Rmoney, father of ObamaCare and the world’s smartest businessman EVAH!, knows that we are doomed unless we repeal and reverse.

There certainly are plenty of people who think that way, and having bet on the economy to tank under the weight of Obama so-shu-lism, they’re spending billions this morning to cover their ill-advised short positions in stocks. I pity the dopes who gambled much of what they own that Obama would destroy the free-enterprise system. He’s one of the best friends Wall Street ever had.

Not that Wall Street is against so-shu-lism when it throws money their way … the Masters Of The Universe (TM) got a pretty good return on the $900 million they spent to put Obama in the White House. None of them went to jail. Their bonuses are bigger than ever. They’re financing their next bubbles at zero interest. The angry mobs were appeased with toothless regulations. their mansions and yachts keep getting bigger. Life has never been better.

So, you worked hard to get George W. Bush out of office, did you? He, and his Republican cohorts in the House and Senate, were the granddaddys of creators of unfunded liablities. We could start with the two “off budget” wars, but what about “No Child Left Behind”, etc.?

Republicans have their talking points, but it seldom squares with the facts.

@36 The marble halls of Congress will no longer be stained by the odious Jean Schmidt. It wasn’t even close; a novice beat her in the GOP primary by 49% – 43%. Even GOP voters know a broomstick jockey when they see one.

@41-
Roger Rabbit does have some good strategies but he will be the 1st to admit he doesn’t make huge$$ daily. However he does seem to love to report the good days and rarely reports the bad. If all he made today was $5,000, he probably has $250-300K in the market and $$ on the sidelines to take advantage of buying opportunities. That’s good. It’s America. Take risks and reap rewards. Too bad Obama wants to guarantee folks something for just breathing air and taking up space. Sounds appealing, doesn’t it? Are we all entitled?

Too bad Obama wants to guarantee folks something for just breathing air and taking up space.
Which people are you objecting to? Children? The Elderly? The unemployed but looking for work? The Disabled? Veterans?
Why do you think YOU are entitled to breath air and take up space?

After what happened with ACA, will anybody believe a president – whichever party – who tells Little George that it’s not a tax, it’s a mandate?

Romney admitted his mandate was a tax
By Greg Sargent
ABC News’s Michael Falcone unearths video of Mitt Romney admitting, in a 2008 presidential debate, that the individual mandate he passed as Governor of Massachusetts was a tax:

CHARLIE GIBSON: Governor, [inaudible] you imposed tax penalties in Massachusetts [inaudible].
ROMNEY: Yes, we said, look, if people can afford to buy it, either buy the insurance or pay your own way; don’t be free-riders and pass on the cost to your health care to everybody else…

So, what’s the difference between Romney’s tax/mandate and Obama’s tax/mandate?

with Thursday’s ruling, the government can no longer mandate that you carry insurance, it can only levy a small tax on those who don’t. The real-world impact of that? Only an estimated 1 percent of the population will face the tax – a tax that maxes out at 1 percent — and it may not even be enforceable!http://www.alternet.org/teapar.....re_ruling/

It seems to me that the Republicans, and the Tea Party in particular, felt that the “fix was in”, and they were guaranteed a ruling which was favorable to them. When they didn’t get it, they went crazy, like someone had taken a bribe but were prosecuted anyway.

It suits the Republicans – Simone Cameron, the first Secty of War during Lincoln’s administration, said “An honest politician is one who, when he is bought, will stay bought.”

That’s what passes for Republican ideals of honesty these days, and even that is suspect.

They were obviously completely unprepared for the decision as it came down, what with Chief Justice Roberts doing the foul deed. It must have been like a kick in the balls. They still don’t know what to say or do. I have to believe that this SCOTUS decision changes the entire 2012 campaign, and not in a way that’s good for Republicans. Bin Laden dead. GM alive. ACA passes SCOTUS. Win, win, win. Republicans are left to whine until November. Americans love a winner and hates whiners. Game change.

Another consistent pattern in Cruise’s divorces is that it typically costs him $100 – $200 million to get rid of a wife. My guess is the tab will be similar this time. Which means he’ll have to make another movie to pay for this. Anyone want to take bets on who Wife #4 will be? There’ll probably be a long line of applicants, as it’s one of the best-paying jobs in Hollywood.

Nice to know that in these days of systemic corruption, when almost everybod on Wall Street is pathologically dishonest and almost nobody goes to jail for wrecking the economy, good old-fashioned straight-up embezzlement still gets a crooked banker a prison sentence.

“A former Citigroup Inc vice president who admitted to embezzling more than $22 million was sentenced on Friday to 8 years in prison, federal prosecutors said.”

1. Eight years for stealing $22M works out to $2.75 million a year. I know lots of people who willingly would do prison time for that pay. The risk/reward ratio here is significantly better than what a homeless person who shoplifts a loaf of bread from Safeway enjoys, so bankers are still a privileged caste in our society, even when they get caught.

2. Nevertheless, $22M isn’t enough to pay for a Tom Cruise divorce; at that rate, a crooked banker would have to serve at least 36 1/3 years behind bars to get rid of a Katie Holmes, so my advice to crooked bankers is to limit their marrying to second-tier New York socialites.

3. Eight years for stealing only $22M seems like a lot compared to how much time crooked bankers usually serve, i.e., none. I wonder if this guy got an enhanced sentence because he’s black?

# 54: The problem is with the manner in which airlines, and air traffice, was deregulated. Under the system in the U.S. for quite some time now, no government authority has any control over when an airline schedules an arrival or departure. This was supposed to free up the benefits of “market competition”, as the advocates claimed at the time. But the result is that airlines know when you want to fly to a particular destination, and schedule all your flights for about the same time. I can’t remember the details, but one report a few years back detailed how more than a dozen airlines were trying to get some thirtdy or so jets to depart JFK for D.C. within the same ten-minute window – a logical impossibility, especially while flights are arriving as well. The result: flights stacking up on the runway taxiways waiting for clearance, and at that point all it takes is a thunderstorm anywhere in the route networks and the whole system collapses. I understand that’s what caused the four or five-hour delay on the tarmac awaiting takeoff clearance before the flight attendent snapped.

In Japan, takeoff and landing slots are controlled by the government. Interestingly, the best on-time performance in the world last year was recorded by ANA and JAL, both Japanese legacy carriers.

I think it was Bloomberg today that had a story of how the Chinese heir-apparant to the leadership had a family which had benefited enormously from his influence, owning real estate and interests in vital industries and mineral rights. He came to power in the wake of his predecessor’s financial scandal, but he doesn’t seem to have followed his own advice to keep his family in check.

Of course, we have to be careful, especially when dealling with foreign politics. Such stories might have been planted (or exagerated) into the western press by a political rival, hoping to knock out the competition.

Citing precedents established by the Reagan and Bush administrations, the Department of Justice announced today it won’t enforce the House contempt finding against Attorney General Eric Holder, because withholding documents from Congress pursuant to executive privilege “is not a crime.”

Roger Rabbit Commentary: This means if Darrel Issa wants to enforce his bullshit contempt citation, he’ll have to arm himself with a squirtgun and go to Holder’s home and enforce it himself. Or he can use it as toilet paper and wipe his ass with it.

Bob was so sure of ACA and SCOTUS. He was so sure of November. So certain was Bob, he loved spiking the ball on us again and again. Unfortunately for Bob, he never crossed the goal line. Hell, the poor sap never even got near it. Lordy, for all his talk, he must now be horribly humiliated. Yes, horribly so. Oh well, he had it coming to him. I reckon that he’s now gone back to being what he was before, an unknown, unimportant, unloved loser.

Then again, maybe Bob is just bummed because Bristol Palin’s new reality show, already on it’s slow, painful journey towards cancellation, got pushed out of primetime today, replaced by “Dance Moms”. That’s gotta really suck for someone like Bob. Maybe even more so than the ACA decision.

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